Reasonable care is an important element of the Code of Professional Conduct (Code) in the Tax Agent Services Act 2009 (TASA).
Under the Code, you are required to take reasonable care:
- in ascertaining a client’s state of affairs that is relevant to a statement you make or a thing you do on behalf of a client (Code item 9)
- in ensuring taxation laws are applied correctly to the circumstances in relation to which you provide advice to a client (Code item 10).
There is no set formula for determining what it means to take reasonable care in any given situation. Determining what reasonable care is will involve you exercising your professional judgement, taking into account relevant factors including:
- the terms of engagement between you and your client
- the complexity of the transaction
- your client’s circumstances, including their level of sophistication (such as their level of tax knowledge in the subject area)
- the nature of any pre-existing relationship between you and your client.
The terms of the engagement with a client may arise in a variety of ways, including a letter of engagement, an email or via telephone. It is prudent to have a written agreement (such as a letter of engagement) between you and your client that sets out the terms and conditions of the arrangement.
Ascertain a client's state of affairs
You must take reasonable care in ascertaining your client’s state of affairs to the extent that it is relevant to:
- a 'statement' you make, or
- a ‘thing’ you do for your client.
- a ‘statement’ could be a statement you make to the Commissioner of Taxation or to your client when providing taxation advice
- a ‘thing’ you do could include providing taxation advice to your client, or preparing and lodging returns, statements, objections or appeals on behalf of your client.
The Code does not require you to ‘audit’, examine or review books and records or other source documents to independently verify the accuracy of information supplied by your clients. However, you may not automatically discharge your responsibility in particular cases by simply accepting what you have been told by your client.
When an existing client provides information that seems credible (and is consistent with the client’s previous statements) and you have no basis to doubt the information supplied, you may use your professional judgment in accepting the information without further checking.
However, if the information provided does not seem credible, or appears to be inconsistent with the client’s previous claims or statements, further enquiries would be required having regard to the terms of the engagement with your client.
If your client’s circumstances have changed, you need to consider what additional questions you need to ask them to ascertain their state of affairs relevant to the tax agent or BAS services being provided.
Even if the agreed scope of services excludes the examination of information provided by the client, you should make further enquiries or decline to act for them if you know (or reasonably ought to have identified) that the information supplied does not seem credible.
If the service you are providing requires you to rely on the information or advice of another expert, further enquiries are not required unless you identify (or reasonably ought to have identified) that the information was incorrect or incomplete.
For further information and practical examples, refer to TPB(I) 17/2013 Code of Professional Conduct – Reasonable care to ascertain a client’s state of affairs
Ensure taxation laws are applied correctly
You must take reasonable care to ensure you correctly interpret and apply taxation laws to your client’s circumstances when you provide advice.
While there is no set formula, this may include referring to legislation and other relevant materials issued by the Australian Taxation Office, recognised professional associations, specialists or other registered tax or legal practitioners.
For further information and practical examples, refer to TPB(I) 18/2013 Code of Professional Conduct – Reasonable care to ensure taxation laws are applied correctly
Failure to take reasonable care
If you fail to take reasonable care in ascertaining a client’s state of affairs or applying taxation laws correctly to your client's circumstances, we may find that you have breached the Code and impose sanctions for that breach.
For more information, refer to: